Bora Laskin

Bora Laskin: Bringing Law to Life

PHILIP GIRARD
Copyright Date: 2005
Pages: 600
https://www.jstor.org/stable/10.3138/9781442671522
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    Bora Laskin
    Book Description:

    In any account of twentieth-century Canadian law, Bora Laskin (1912-1984) looms large. Born in northern Ontario to Russian-Jewish immigrant parents, Laskin became a prominent human rights activist, university professor, and labour arbitrator before embarking on his 'accidental career' as a judge on the Ontario Court of Appeal (1965) and later Chief Justice of Canada (1973-1984). Throughout his professional career, he used the law to make Canada a better place for workers, racial and ethnic minorities, and the disadvantaged. As a judge, he sought to make the judiciary more responsive to modern Canadian expectations of justice and fundamental rights.

    InBora Laskin: Bringing Law to Life, Philip Girard chronicles the life of a man who, at all points of his life, was a fighter for a better Canada: he fought antisemitism, corporate capital, omnipotent university boards, the Law Society of Upper Canada, and his own judicial colleagues in an effort to modernize institutions and re-shape Canadian law. Girard exploits a wealth of previously untapped archival sources to provide, in vivid detail, a critical assessment of a restless man on an important mission.

    eISBN: 978-1-4426-7152-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. xi-xii)
    R. Roy McMurtry

    In the history of Canadian law in the twentieth century, Bora Laskin is a major figure and a biography of him is definitely overdue. In his account of Laskin’s long and distinguished career, Professor Philip Girard of Dalhousie University explores in vivid detail what he describes as the life and times of ‘a restless man on a mission.’ In assessing many of Laskin’s significant contributions, Professor Girard delves into his ‘first career,’ which included his work as a human rights activist, university professor, and labour arbitrator. In a compelling analysis Girard demonstrates how Laskin used the law to make Canada...

  4. Acknowledgments
    (pp. xiii-2)
  5. Introduction
    (pp. 3-12)

    When I entered law school in 1975 Bora Laskin was at the height of his powers and his fame. Chief justice of Canada for less than two years, he was the first Jew and the first academic named to the Supreme Court of Canada. Belonging to neither of Canada’s European founding nations, and known for his rigorous commitment to the highest ethical and intellectual standards on the part of the judiciary, he symbolized a new spirit of openness and transformation in Canadian society and law. In spite of his position at the summit of the Canadian judiciary he remained a...

  6. Part I: Starting Out
    • 1 The Lakehead
      (pp. 15-37)

      In 1906 twenty-five-year-old Mendel Laskin stepped off the train in Winnipeg after a long and arduous journey halfway around the world from his home in Russia. He spoke little English and had never been outside Russia. Fortunately, the strangeness of the New World was tempered by the burgeoning Jewish community then establishing itself in Winnipeg’s North End. Only a few hundred individuals in 1901, the community now numbered some six thousand. It would swell to ten thousand by 1910, a tenth of the Canadian Jewish population. Mendel soon found employment in a scrap metal yard, where he worked for fifty...

    • 2 Law School
      (pp. 38-57)

      On Tuesday 23 September 1930 Bora Laskin made his way to the gloomy brick house at 43 St George Street, where he entered the second year of the honour course in law at the University of Toronto. The course had been created in 1924 by a professor in the department of political economy, W.P.M. Kennedy, and was somewhat unusual in the Canadian context. In all other provinces except Prince Edward Island and British Columbia, one or more universities had a distinct law faculty granting an LLB degree recognized by the local bar. The LLB degree was not yet required in...

    • 3 Articling
      (pp. 58-79)

      On 16 August 1933, the largest riot in twentieth-century Toronto broke out at the park known as Christie Pits, a short walk from the Laskin residence. Provoked by the overt display of the swastika symbol at a local baseball game, the clash between nativist and Jewish youth gangs spiralled out of control until some eight thousand people were embroiled in the melée. Scores were injured but miraculously, no one was killed.¹ The riot at Christie Pits challenged the complacent self-image of ‘Toronto the Good’ as no event in recent memory had done.

      The tension had been building for months. After...

    • 4 Harvard
      (pp. 80-102)

      Bora Laskin’s education at Toronto and Osgoode had provided a solid, perhaps even a superior, intellectual preparation for the work he would undertake at Harvard Law School. Where Toronto paled in comparison with Harvard was in the sheer scale and scope of the legal education enterprise. After three years in the decrepit old house on St George Street, Laskin was in awe of the templelike edifice inhabited by the Harvard Law School.¹ Langdell Hall’s severe classical façade of fifteen enormous Ionic columns rivalled the U.S. Supreme Court itself for sheer majesty. The interior was no less daunting. In the lofty-ceilinged...

    • 5 Waiting
      (pp. 103-124)

      In June of 1937 Bora Laskin returned to Toronto. The Depression had relaxed its grip slightly, but by year’s end the economy worsened again. Fortunately Laskin had a paying position to which he could return while searching for something better. He was about to begin work for theCanadian Abridgmentproject as arranged by Clyde Auld, but postponed that when an opportunity arose to work with the provincial legislative counsel on the Revised Statutes of Ontario 1937. This task had always been contracted out to a single judge or a small committee of judges working under commission from the provincial...

  7. Part II: The Academy
    • 6 Professor
      (pp. 127-149)

      There was no time to lose. With only days before the beginning of term on 24 September, Laskin plunged into preparing classes. He would teach MacKenzie’s courses in public international law and Canadian constitutional law, as well as two introductory courses to non-law students in the faculty of arts. MacKenzie passed on an odd legacy to Laskin: one subject in which he had no interest whatsoever, and one that became the abiding passion of his life. He had told Larry MacKenzie in 1938 that international law was a ‘pipe dream’ with no impact on the current problems between nations.¹ In...

    • 7 Osgoode
      (pp. 150-170)

      The last years of the war saw a revival of interest in the question of legal education at Osgoode Hall. Even the benchers of the Law Society could not ignore the enormous legal and administrative changes the war had wrought in Canadian life. All of a sudden powerful boards and tribunals were everywhere, allocating housing, setting prices, reshaping labour relations, commandeering resources of every description. In January 1943 the Law Society offered a special course of lectures for lawyers on ‘Wartime Emergency Orders and Administrative Tribunals’¹ and struck a committee to recommend changes to the Osgoode curriculum. In January 1944...

    • 8 Revolution
      (pp. 171-194)

      When the members of the law school at the University of Toronto heard they were to be joined by John Willis, Bora Laskin, and Caesar Wright, they were ecstatic. Kennedy was glad of the chance to retire, and gracefully handed over the reins to Wright. In May he wrote to welcome Wright ‘to a faculty which has been my life’s work,’ adding ‘I can think of no one whom I could desire more to be my successor and play out my hand.’ Finkelman, La Brie, and Vanek looked forward to a reinvigorated faculty with the addition of this talented triumvirate....

    • 9 Federalism
      (pp. 195-222)

      Every Canadian has heard the following joke. People from different countries were asked to write an essay on the elephant. The French representative wrote an elegant essay on the love life of the elephant. The German wrote an encyclopaedic treatise considering the elephant from every conceivable point of view. The American wrote an essay on the profit-making potential of the elephant. The Canadian’s essay was entitled ‘The Elephant: A Federal or Provincial Responsibility?’ One can almost imagine Bora Laskin writing such an essay. With few exceptions, his constitutional law scholarship was narrowly focused on this central dynamic of Canadian federalism:...

  8. Part IV: Transitions
    • 10 Arbitrator
      (pp. 225-246)

      In 1944 Bora Laskin observed that ‘we entered this war with a system of labour relations that showed little, if any, advance over that in vogue in 1914.’¹ The provinces had not exactly raced to copy the 1935Wagner Act; some had experimented with laws providing more protection for collective bargaining, but none had gone so far as to force employers to bargain with unions enjoying majority support among their workers, or to create state machinery for certifying unions or enforcing collective agreements. Laskin commented at a later date, ‘[a] s a matter of history, collective agreements in Canada had...

    • [Illustrations]
      (pp. None)
    • 11 Human Rights
      (pp. 247-271)

      As the war drew to a close, Jews outside Europe reacted with a combination of relief and horror. Even as they welcomed the end of the war they recoiled at the revelations from the newly liberated death camps of eastern Europe. Bora Laskin shared in these mixed emotions. The optimism was palpable in Canada, visible in the faces of the large class of eager veterans Laskin faced at Osgoode in the fall of 1945. Yet his connections to the Holocaust cast a dark shadow on his experience of the post-war years. The Jewish population of Bluma’s Latvian homeland had been...

    • 12 Academic Freedom
      (pp. 272-292)

      It was a mysterious beginning to an extraordinary controversy at Winnipeg’s United College. On 10 April 1958 a private letter from one faculty member to another showed up in a blue envelope on the desk of principal William Cornett Lockhart. Its original envelope was missing and attached to it was an anonymous typed note: ‘Found in College Hall. We think you should read it. Some staff loyalty???’ The author of the misdirected missive, history professor Harry Crowe, was on leave at Queen’s University. He had written to Professor William Packer of the German department inquiring about the fledgling United College...

    • 13 Elder Statesman
      (pp. 295-315)

      Bora Laskin had taught full-time without a break for twenty years before applying for sabbatical leave for the year 1961-2. Now on the cusp of fifty, Bora and Peggy felt able to pause and take stock. Wisely, they decided to leave Toronto and spend the year based in London, taking Barbara with them while John stayed in Toronto to start university. Sabbatical leaves were granted on an ad hoc basis at this time, while salary arrangements ranged from full salary to no salary. Laskin was given half his $15,000 salary, topped up with a $4,500 Canada Council grant, one of...

    • 14 The Accidental Judge
      (pp. 316-337)

      After being named chief justice of Canada, Bora Laskin observed in an interview with CBC journalist Elizabeth Gray that he never expected his initial appointment to the Ontario Court of Appeal. ‘But there are accidents in life,’ he continued, ‘and I have developed what I call a theory of accidentalism. All you can do is live with it.’¹ Laskin’s appointment to the Ontario Court of Appeal in September 1965 and his elevation to the Supreme Court of Canada in March 1970 were the product of a very particular set of events at a specific historical moment: the Pearson-Trudeau years of...

    • 15 Ontario Court of Appeal
      (pp. 338-362)

      Laskin’s nine brethren were a crusty old lot, with emphasis on the ‘old.’ Aside from Gregory Evans, who was a year younger than Laskin and joined the court at the same time, and James Laidlaw McLennan, who was only four years older than Laskin, the rest were all born at the turn of the twentieth century. Most had been on the court for many years, two since 1946. One of these was John Bell Aylesworth, the dominant personality on the court, whom Laskin knew from the days of wartime conciliation boards when Aylesworth was counsel for Ford Motor Company. Aylesworth...

  9. Part V: The Supreme Court of Canada
    • 16 On to Ottawa
      (pp. 365-384)

      When Frank Scott heard of Bora Laskin’s appointment to the Supreme Court of Canada, he wrote immediately to his friend. ‘This is the best news since the death of Lord Haldane,’ he exulted, ‘or, to be more humane, since the Radio case. Of course it should have happened, but in Canada so few things seem to work out the way they should,’ With ‘Drybones,... Bora on the Supreme Court... maybe the Liberals can win the Quebec election and turn federalist!’ Then, in a more serious vein: ‘Nobody knows what we may be in for over the next few years, but...

    • 17 Early Promise
      (pp. 385-406)

      The 1970s saw important debates in Canadian society translated into legal form and argued before the Supreme Court. New issues such as gender equality, gay rights, and aboriginal entitlements appeared alongside more traditional ones such as the division of powers, the role of the courts in defining criminal procedure, the relationship between the courts and administrative agencies, and the continuing adjustment of the common law. There were few division of powers cases for Laskin to sink his teeth into during his first few years on the Court: many more would arise after he became chief justice late in 1973. Before...

    • 18 Chief Justice
      (pp. 407-427)

      In December 1973 Bora had prepared a surprise for Peggy: two weeks in Hawaii during the January recess. Morris Shumiatcher was in on the secret, and on 18 December he wrote to his friend: ‘You must tell me about the hugs and kisses that Peggy will bestow upon you when you will have told her of your arrangements to go to Honolulu next month.’¹ The eighteenth was the last sitting day that term, and judgments were to be delivered on Friday the twenty-first. Then, after a week’s rest, the tropical holiday beckoned. Laskin did not know that a bigger surprise...

    • 19 The Laskin Court
      (pp. 428-452)

      With his first year as chief justice behind him, Laskin’s second was in some ways easier. He was no longer the administrator of Canada, and, more importantly, the long-sought amendment to theSupreme Court Actgiving the Court control over its own docket came into force on 27 January 1975.¹ With a few exceptions, the Court would now have to hear appeals only in cases where a panel of three judges found that an issue of sufficient public or legal importance had arisen. The Court still heard 160 cases in 1975, but Laskin sat on only half of them (seventyseven),...

    • 20 The Great Dissenter
      (pp. 453-481)

      ‘A judge never writes more freely than when he writes in dissent,’ observed Bora Laskin in 1972.¹ And Canada has never had a chief justice who dissented as frequently, and freely, as Laskin himself. He was not completely isolated on the Court, however, and only rarely dissented alone. Whether joined by Hall and Spence in his early years on the Court, by Spence and Dickson later, or by Estey and Dickson in his last years, Laskin always spoke for an important subset of his colleagues even if they did not form a majority on a particular issue. Laskin and those...

    • 21 Architect of Public Law
      (pp. 482-502)

      Laskin’s principal success while at the Supreme Court was in the field of administrative law. Building on legal modernist ideas he had studied in the 1930s, then developed and applied during his long tenure as a labour arbitrator, he persuaded his colleagues to reorient their approach to the decisions of administrative tribunals and public officials. There were three main elements to Laskin’s vision. First, he believed the courts should adopt a stance of deference to the decisions of statutory decision makers such as administrative tribunals and labour arbitrators. At the same time he subjected a wider range of actions by...

    • 22 Patriation
      (pp. 503-515)

      A few years after Laskin’s death, the University of Toronto Faculty of Law rebuilt its library and renamed it the Bora Laskin Law Library. At a gala event on 21 March 1991 celebrating its official opening, former prime minister Pierre Trudeau addressed a large audience at Convocation Hall. The audience probably expected a pleasant blend of personal reminiscence and insightful analysis of Laskin’s contribution to Canadian jurisprudence. What they got was a eulogy to the Laskin-Estey-Mclntyre dissent in thePatriation Reference,and a blistering attack on the majority decision - a decision declaring the existence of a constitutional convention requiring...

    • 23 The Berger Affair
      (pp. 516-527)

      Indirectly, thePatriation Referenceinitiated a bitter controversy between two men whom many people would have identified as judicial twins: Bora Laskin and Thomas Berger. William Mclntyre, who knew both of them well, thought ‘there were [no] two judges in the Canadian judicial firmament who were more alike juridically than Laskin and Berger.’¹ The family resemblance was striking: Bergerwasin many respects a younger, west coast version of Bora Laskin. As a twenty-nine-year-old MP, Berger had spoken out in Parliament about the RCMP presence on university campuses when Laskin was pursuing the issue on behalf of the CAUT. As...

    • 24 Final Years
      (pp. 528-538)

      At a gathering of the judges in the early 1980s, Laskin wanted to express the hope that each of his colleagues would serve out their full term. Except that through a Freudian slip he said ‘live out,’ rather than ‘serve out.’¹ His subconscious knew what his conscious mind refused to admit. Publicly Laskin continued to insist that he had no plans to retire before the age of seventy-five, and he retained a full agenda of court work and extra-curricular activities until some new health crisis intervened. The spring of 1982 was particularly thick with events, some with personal resonance, some...

    • Epilogue
      (pp. 539-544)

      All his life Bora Laskin sought to move Canadian society in a different direction, to make it more tolerant, more just, more open to a diversity of ideas, more solicitous of the needs of the most disadvantaged and disenfranchised. Law and education were the tools he used to try and effect change. As an academic he participated in legislative reform campaigns and sought to influence the course of judicial decisions through his writing, as an arbitrator he was able to shape the lived experience of labour law, and as a judge he contributed directly to the development of Canadian jurisprudence....

  10. Notes
    (pp. 545-618)
  11. Illustration Credits
    (pp. 619-620)
  12. Index
    (pp. 621-646)
  13. Back Matter
    (pp. 647-649)